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International Legal Aid in Practice: The ICJ Trust Fund

  • Peter H. F. Bekker (a1)

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1 See UN Doc. A/44/PV.43, at 7–11 (1989). As early as 1970–1974, the possibility of establishing a multilateral assistance fund to finance litigation costs was discussed in the Sixth Committee of the UN General Assembly. See UN Doc. A/8568, at 8, para. 48 (1971), quoted in Shabtai Rosenne, Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice 200 n.2 (1983).

2 As far as this writer is aware, only three short articles on the trust fund have been published. See Daniel Vignes, Aide au développement et assistance judiciaire pour le règlement des différends devant la Cour internationale de Justice, 35 Annuaire Français de Droit International 321 (1989); Taina Bien-Aime, A Pathway to The Hague and Beyond: The United Nations Trust Fund Proposal, 22 N.Y.U. J. Int’l L. & Pol. 671 (1990); and Mary Ellen O’Connell, International Legal Aid: The Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice, in International Courts for the Twenty-First Century 235 (Mark W. Janis ed., 1992). At the request of the Secretary-General, some international law journals published a background note on the trust fund. See, e.g., 29 Can. Y.B. Int’l L. 414 (1991).

3 UN Pub. No. 89-26099 (1989), issued at the time of the announcement of the trust fund, on November 1, 1989, reprinted in UN Doc. A/47/444, at 4 (1992), and 28 ILM 1589 (1989) [hereinafter Terms].

4 See UN Charter Art. 97.

5 See ICJ Statute Art. 1, which forms an integral part of the UN Charter. See also UN Charter Art. 92. In his recent report, An Agenda for Peace—Preventive diplomacy, peacemaking and peace keeping, the Secretary-General recommended that states support the trust fund. See UN Doc. A/47/277–S/24111, at 11, paras. 38–39 (1992), reprinted in 31 ILM 953 (1992). See also Terms, supra note 3, para. 2. For a debate on the Secretary-General’s role, see Bien-Aime, supra note 2, at 695–96.

6 See Terms, supra note 3, para. 16; and UN Doc. ST/SGB/188, para. 34 (1982) (requiring that an implementing office be designated).

7 Financial Regulations and Rules of the United Nations, UN Doc. ST/SGB/Financial Rules/1/Rev.3 (1985). See Financial Regulations 6.6 and 6.7, Financial Rules 106.3 and 106.4, and UN Doc. ST/SGB/188 (1982). The establishment by the Secretary-General of a general trust fund, as opposed to a technical cooperation trust fund, merely represents an invitation by him to (member) states and other entities to contribute funds toward a specific project that is not financed through the regular UN budget. See Bien-Aime, supra note 2, at 671 n.3. Legally speaking, member states need not be solicited to make contributions and the conclusion of an agreement between the United Nations and prospective donors is not necessary; a trust fund may rely entirely on unsolicited contributions, i.e., those stimulated by the announcement of its creation.

8 See Terms, supra note 3, para. 14, 2d sentence, in conjunction with UN Doc. ST/SGB/188, para. 43 (1982).

9 “[T]o bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”

10 The role of the Court is not confined to judicial settlement stricto sensu, i.e., by way of a judgment. As was pointed out by the President of the Court, Sir Robert Jennings, in his speech to the General Assembly on October 21, 1992, the Court has a wider role, including the encouragement of states parties in cases pending before it to try to negotiate a settlement; in its jurisprudence, the Court has continually maintained that judicial settlement is only an alternative to settlement by the parties themselves. Accordingly, at the request of the parties, in Maritime Delimitation between Guinea-Bissau and Senegal, no date has been fixed for the filing of the first written pleadings, which extends the time allowed the parties for negotiation. See Statement by the President of the International Court of Justice, UN Doc. A/47/PV.43, at 11 (1992). There have also been instances of diplomatic settlement of disputes by states when recourse to the Court as an option was a factor in the negotiation.

11 See Terms, supra note 3, para. 7.

12 Pursuant to id., para. 15, the Secretary-General must submit an annual report on the activities of the trust fund to the UN General Assembly.

13 See Report of the Secretary-General, UN Doc. A/47/444, at 3, para. 10 (1992). This sum amounted to a considerable increase over the $200,000 received up to October 1990. The donor states, and the year in which the contributions were made, are:

1989: Cyprus

1990: Chad, China, Czechoslovakia, Dominica, Fiji, France, Hungary, Indonesia, the Maldives, Malta, New Zealand, Norway, Oman, Senegal, Togo, the United Kingdom and Zambia

1991: Austria, Czechoslovakia, Denmark, Dominica, Finland, France, Germany, Greece, Japan, Malta, Mexico, the Netherlands, Spain, Sweden, Switzerland and Venezuela

1992: France, Hungary, Luxembourg, Morocco, Singapore, Spain, Sri Lanka and Sweden

1993: Sweden

The report does not mention whether or not entities other than (member) states have made contributions to the trust fund; nor does it comment on the fund’s current financial status.

14 See also infra note 37. In proceedings instituted by special agreement, the only ones that may be eligible for assistance from the trust fund, the first round of written pleadings consists of the filing of memorials by the parties, within the same time limits, followed by two countermemorials, in the absence of any contrary agreement; thereafter, if the Court finds replies necessary, it may authorize the parties each to file a reply, constituting a second round of written pleadings. See ICJ Rules of Court, Art. 46, para. 2, reprinted in 73 AJIL 748, 761 (1979); ICJ Statute Art. 43, para. 2.

15 See ICJ Statute Art. 42.

16 See ICJ Rules of Court, supra note 14, Art. 31.

17 The number of copies of each pleading to be filed, including annexes, is normally 125.

18 See ICJ Rules of Court, supra note 14, Art. 51.

19 The ICJ Rules of Court do not require that pleadings be printed. But, in practice, pleadings are always submitted in printed form. The Court may bear part of the cost of printing (or, more accurately, of typesetting), the conditions of which are transmitted to the parties in each case. See id., Art. 52 n.1.

20 Typically, legal counsel in cases before the ICJ are drawn from European universities such as Oxford, Cambridge and Paris, and from the London, Paris and New York Bars, where an hourly fee of $350 for international litigation is no exception. There is no formally established “ICJ Bar.”

21 Amounts payable to witnesses and experts appearing at the initiative of the Court are borne by the United Nations. ICJ Statute Art. 33.

22 But see O’Connell, supra note 2, at 238–39.

23 But see id. at 236 (stating that “[a]ny state may make a request”).

24 ICJ Statute Art. 34, para. 1 (“Only States may be parties in cases before the Court.”). Private persons are therefore not entitled to institute proceedings before the ICJ. The Court receives approximately 1,200 requests per year from private persons, who have to be informed that they lack standing. See 1991–92 ICJ Y.B. 205.

25 UN Charter Art. 93, para. 1.

26 Id., para. 2. These conditions, which have hitherto been the same in each case, are (1) acceptance of the Court’s jurisdiction in accordance with the provisions of the ICJ Statute; (2) acceptance of all the obligations of a UN member under Article 94 of the Charter; and (3) an undertaking to contribute to the expenses of the Court such equitable amount as the General Assembly shall assess from time to time after consultation with the government of the state concerned. See SC Res. 91 (1946), UN Doc. A/64/Add.1, at 182 (1947). At present, only two nonmember states, Nauru and Switzerland, are parties to the ICJ Statute. See Report of the International Court of Justice—1 August 1991–31 July 1992, UN GAOR, 47th Sess., Supp. No. 4, at 3, para. 15, UN Doc. A/47/4 (1992) [hereinafter ICJ Report].

27 These conditions are spelled out in SC Res. 9 (1946), UN Doc. S/INF/2/Rev.1(I), at 13 (1964), reprinted in 1991–92 ICJ Y.B. 60–61. See also ICJ Statute Art. 35, para. 2; ICJ Rules of Court, supra note 14, Art. 26, para. 1(c), Art. 41.

28 See Terms, supra note 3, para. 3.

29 The declarations of 56 states are in force at present, a number of them subject to reservations. See 1991–92 ICJ Y.B. 73–111. The 56th declaration, by Hungary, was deposited on October 22, 1992.

30 Of the cases currently pending before the ICJ, only Territorial Dispute (Libya/Chad) and Gabčíkovo-Nagymaros Project (Hung./Slovakia) were brought by way of a special agreement.

31 See UN Doc. A/44/PV.43, at 8 (1989).

32 This argument is reinforced by reference to the plain language of Terms, supra note 3, para. 8(a): “a copy of the special agreement” (emphasis added). But see Bien-Aime, supra note 2, at 679–83, who believes that eligibility for financial assistance from the fund should not be linked solely to a special agreement between the parties, but should include all forms of jurisdiction-conferring consent, such as forum prorogatum and coinciding applications. However, forum prorogatum does not involve the express will of a state as manifested by a special agreement, but rather willingness that has come into being as a result of acts subsequent to the seisin of the Court. Moreover, although it is true that consent given ad hoc in an individual case need not be given in any special form, see 2 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 505–06 (1986) (citing ICJ case law), this view fails to recognize that even when there seems to be a tacit, post hoc agreement, the respondent state may still be formally refusing to accept the title of jurisdiction invoked by the applicant, which is exactly what the Secretary-General wished to avoid. See UN Doc. A/44/PV.43, at 8 (1989); and Shabtai Rosenne, The World Court: What It is and How It Works 88 (4th rev. ed. 1989).

33 See Terms, supra note 3, para. 4.

34 O’Connell’s conclusion, supra note 2, at 238, that “the Secretary-General’s decision to limit funding suggests he questions the appropriateness of the Court’s compulsory jurisdiction” is unwarranted.

35 On the role and methods of implementing ICJ judgments, see Bien-Aime, supra note 2, at 684–88.

36 See O’Connell, supra note 2, at 237.

37 Article 97 of the ICJ Rules of Court, supra note 14, gives effect to Article 64 of the ICJ Statute, which sets forth the general principle that, unless otherwise decided by the Court, each party shall bear its own costs. See Geneviève Guyomar, Commentaire du Règlement de la Cour Internationale de Justice 619 (1983).

38 As regards the requirements for appointment to panels, paragraph 9 of the Terms, supra note 3, states only that the members shall be “persons of the highest judicial and moral standing.”

39 See id., para. 10.

40 Id., para. 11. As O’Connell, supra note 2, at 236, points out, a panel may in practice turn to such guidelines as were developed in the UN Development Programme to concretize the criteria laid down in paragraph 11.

41 Paragraph 9 of the Terms, supra note 3, gives a nonexhaustive list of possible types of expenses:

preparation of memorials, counter-memorials and replies; fees for agents, counsel, advocates, experts or witnesses; legal research fees; costs related to oral proceedings: e.g. interpretation into and/or from languages other than English and French; expenses of producing technical materials (e.g. reproduction of cartographic evidence); costs relating to the execution of an ICJ Judgment (e.g. demarcation of boundaries).

42 See id., para. 13. O’Connell, supra note 2, at 236, gives an inaccurate description of the mandate of a panel of experts, stating, inter alia, that the experts “issue funds, along with a budget.”

43 Terms, supra note 3, para. 13, 2d sentence.

44 See Report of the Secretary-General, supra note 13, at 2, paras. 8–9.

45 But see O’Connell, supra note 2, at 237. Also, the Agent of Chad, in concluding his Government’s presentation before the ICJ at the public hearings of July 14, 1993, in Territorial Dispute (Libya/Chad), disclosed that Chad had profited from the trust fund.

46 Report of the Secretary-General, supra note 13, at 2, paras. 8–9.

47 Report of the International Court of Justice—1 August 1989–31 July 1990, UN GAOR, 45th Sess., Supp. No. 4, at 14, para. 69, UN Doc. A/45/4 (1990). For another brief reference to the trust fund, see 1990–91 ICJ Y.B. 186 (reproducing letter of Aug. 27, 1990, to the UN Secretary-General from the then President of the Court, Judge José María Ruda).

48 Statement by the President of the International Court of Justice, supra note 10, at 7. See also his 1991 statement, Speech by Sir Robert Yewdall Jennings on the Report of the International Court of Justice, UN Doc. A/46/PV.44 (1991), reprinted in 86 AJIL 249, 250 (1992).

49 Bien-Aime, supra note 2, at 689.

50 Pursuant to the final provision of the Terms, supra note 3, para. 17, the Secretary-General may revise the Terms “if circumstances so require.”

51 See supra note 7.

52 Financial Regulation 6.7, supra note 7.

53 UN Doc. ST/SGB/188, para. 25 (1982). According to paragraph 12 of the Terms, supra note 3, administrative costs related to the operation of the fund, such as travel expenses and subsistence allowances paid to members of the panel of experts, are covered by the fund, not by outside (UN) sources. In addition, the UN Advisory Committee on Administrative and Budgetary Questions must be informed of the creation of the fund. See Financial Regulation 6.6, supra note 7.

54 See supra note 6.

55 See text at note 1 supra.

56 See Bien-Aime, supra note 2, at 690. Apart from reasons of neutrality, it must be doubted that “the Court is the most competent organ to assess the costs of judicial procedures,” as contended by Bien-Aime. Its budget covers only the administrative expenses related to the Court’s internal functioning. These costs are of no concern to the litigants, as they are borne by the United Nations. The costs that concern the parties, and that may constitute the real burden in applying to the Court, are those involved in litigation; their amount remains unknown to the Court, as states parties before it have not disclosed them. It has been stated in this Journal that the United States and Canada spent about U.S. $7 million each on the preparation and presentation (but excluding the implementation) of the Gulf of Maine case. See Davis R. Robinson, David A. Colson & Bruce C. Rashkow, Some Perspectives on Adjudication before the World Court: The Gulf of Maine Case, 79 AJIL 578, 588 (1985).

57 See Bien-Aime, supra note 2, at 694.

58 Litigating states will wish to be free to seek out the ablest lawyers, whatever their nationality.

59 See Bien-Aime, supra note 2, at 694.

60 O’Connell, supra note 2, at 240–41.

61 Of course, the trust fund may in practice lead to that result. See supra note 5.

62 See my Letter to the Editor, 87 AJIL 429 (1993).

63 But see O’Connell, supra note 2, at 239. As regards O’Connell’s fear that “a permanent fund may encourage some states to litigate, rather than negotiate,” see my comments supra note 10.

64 The Sixth Committee of the UN General Assembly, during the Assembly’s 47th session in 1992, “urged” states to make contributions to the trust fund. See Report of the Working Group on the United Nations Decade of International Law, UN Doc. A/C.6/47/L.12, at 3, para. 13 (1992). See also the Secretary-General’s plea in UN Doc. A/46/PV.44, at 29–30 (1991).

65 Statement by Sir Arthur Watts of the United Kingdom, UN Doc. A/44/PV.43, at 13 (1989). Contributions may be sent to the ICJ Trust Fund, Chemical Bank New York, UN Branch, Account No. 015-004473.

* The views expressed in this essay reflect the opinions of the writer in his personal capacity and not as a staff member of the Registry of the International Court of Justice, or the United Nations.

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